Excommunication of remarried: was it ever a reality?

There’s been a lot of debate in English Catholic journalism over the last week or two about a Cambridge lecture by Chicago’s Cardinal Blase Cupich.

The lecture itself, ‘Pope Francis’ revolution of mercy: Amoris Laetitia as a new paradigm of Catholicism’, conducted under the auspices of the Von Hügel Institute for Critical Catholic Inquiry, can easily be watched online through youtube.com, while commentary on it can be found almost wherever one looks.

Especially worthy of attention are two interviews with the cardinal, one by Tablet editor Brendan Walsh entitled ‘The shock of the new’ available at thetablet.co.uk, and one by Catholic Herald deputy editor Dan Hitchens entitled ‘Let’s not just make it about… sins of the flesh’ available at catholicherald.co.uk.

Commentary

Much of the Herald piece is commentary on the cardinal’s comments, perhaps the most interesting bit concerning an observation by Cardinal Cupich on excommunication.

“What John Paul II did in [his 1981 apostolic exhortation] Familiaris Consortio and also with the Code of Canon Law, in removing the status of excommunication from somebody who is in a second marriage, was a development that in fact was more significant than what the Pope is for doing now,” Dan reports the cardinal saying. “Because once you begin to say that even though they’re in this quote/unquote sinful, irregular situation, they’re still part of the Church, they’re not excommunicated any more, even though they were before. So that was a change.”

This observation, notes Dan, was first made by the philosopher and politician Rocco Buttiglione, a friend and collaborator of St John Paul II whose comments on Amoris have been praised by former CDF head Cardinal Gerhard Müller and by the Catechism’s lead author Cardinal Christoph Schönborn, but adds that “it has been criticised for historical inaccuracy”.

He continues: “As the canon lawyer Edward Peters, an adviser to the Holy See’s highest court, wrote in a response to Buttiglione: ‘John Paul II never lifted any excommunication against divorced and remarried Catholics because, quite simply, there was no excommunication against divorced and remarried Catholics for him to lift.'”

The Peters’ point about Prof. Buttiglione can be found in an April 2017 piece at his canonlawblog.wordpress.com entitled ‘Fake canon law goes on goin’ on’, linking in turn to a January 2017 one criticising Malta’s Archbishop Charles Scicluna and an April 2014 one titled ‘Was Jackie O excommunicated?’

Amazement

It’s a peculiar article, sneering at the July 2016 L’Osservatore Romano essay ‘The joy of love and the consternation of theologians’ (at osservatoreromano.va), expressing amazement that Prof. Buttiglione “apparently thinks that the 1917 Code itself excommunicated divorced and remarried Catholics” and declaring that the 1917 Code of Canon Law did no such thing.

Buried in his 2014 piece, however, is the statement that “bigamy and attempted bigamy were crimes under Pio-Benedictine law (1917 CIC 2356)”, adding: “The penalty for bigamy, however, was not excommunication but ‘infamy’ (1917 CIC 2293-2295) and, while the consequences of infamy were significant, they were not equivalent to excommunication.”

Translation

At this point it’s worth digging out the 1917 code, which unfortunately has never been formally translated into English but can be looked at in Latin through Prof. Peters’ own canonlaw.info/masterpage1917.htm

According to UCD Latinist Dr Martin Brady, section 2356 of the code reads: “Bigamists, that is, those who, in spite of the presence of a marriage-bond, may seek another marriage (even if only a so-called ‘civil’ marriage), are by that very fact notorious (infames). And if, having disregarded the warning of an Ordinary, they should persist in their illicit relationship, then let them, in accordance with the varying severity of their offence, be either excommunicated or punished by personal interdiction.”

The 1917 code, then, which described remarriage after divorce as ‘bigamy’, clearly allowed for excommunication as a penalty for those who persisted in their behaviour even after being warned. Since the early 1980s, however, following Familiaris Consortio and the introduction of the current Code of Canon Law, this has indeed no longer been something inviting excommunication.

Anyone interested in digging further into this could do worse than taking a look at the long post by Scott Smith on his reducedculpability.blog entitled ‘Amoris Laetitia and the 1917 Code of Canon Law’.